McCray v. State of New York et al

Filing 80

DECISION AND ORDER adopting Magistrate Judge H. Kenneth Schroeder, Jr.'s 77 Report and Recommendation. For the reasons set forth herein, Defendants' 30 Motion to dismiss is granted and Defendant Arnot Ogden Medical Center's 24 m otion to dismiss is granted in part. The matter is referred back to Magistrate Judge Schroeder for further proceedings on plaintiffs' remaining claims. SO ORDERED. Signed by Hon. Richard J. Arcara on 12/28/2023. (LAS)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
CERIOUS D. McCRAY,
And
LYDIA R. McCRAY,
Plaintiffs,
DECISION AND ORDER
15-CV-409-A

v.
STATE OF NEW YORK, et al,
Defendants.
______________________________________

This prisoner civil rights case was referred to Magistrate Judge H. Kenneth
Schroeder, Jr. pursuant to 28 U.S.C. § 636(b)(1) for the performance of pretrial
proceedings.
On October 24, 2023, Magistrate Judge Schroeder issued a Report,
Recommendation and Order (“RR&O”) (Dkt. No. 77) recommending: that the Court
grant Defendants Alan H. Angell, Steven Belloma, Peter Braselman, Paul Chappius,
Jr., Zebra Cicconi-Crozier, Kate Dewar, Lucious Girardi, Pokum Kwan, A. Stamp,
Joanne Seeley, David Taft, Marshall Trabout, and Roger Wellman (hereinafter
“Individual Defendants”) motion to dismiss (Dkt. No. 30); and that the Court grant in
part Defendant Arnot Ogden Medical Center’s motion to dismiss (Dkt. No. 24).
Federal Rule of Civil Procedure 72(b)(3) provides, “[t]he district judge must
determine de novo any part of the magistrate judge’s disposition that has been
properly objected to” (emphasis added). Here, no objections to the RR&O have
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been filed. “When no timely objection is filed, the [C]ourt need only satisfy itself that
there is no clear error on the face of the record in order to accept the
recommendation.” 1983 Advisory Committee Note to Fed. R. Civ. P. 72(b); see
Patton v. Ford Motor Co., 14-CV-0308-RJA-HBS, 2017 WL 2177621, 2017 U.S.
Dist. LEXIS 76148, *5 (W.D.N.Y. May 18, 2017) (same).
The Court finds no clear error with respect to Magistrate Judge Schroeder’s
recommendations. As such, it is hereby
ORDERED that pursuant to 28 U.S.C. § 636(b)(1) and for the reasons set
forth in the RR&O, the Individual Defendants’ motion to dismiss (Dkt. No. 30) is
GRANTED, in that all Plaintiff’s claims against such Individual Defendants are
DISMISSED; and it is further
ORDERED that Defendant Arnot Ogden Medical Center’s motion to dismiss
(Dkt. No. 24) is GRANTED IN PART, in that Plaintiffs’ claims brought pursuant to 42
U.S.C. § 1983 and the Emergency Medical Treatment and Active Labor Act
(“EMTALA”), 42 U.S.C. § 1395dd, against Defendant Arnot Ogden Medical Center,
are DISMISSED.
The Clerk of Court shall enter Judgment consistent with this Decision and
Order.
IT IS SO ORDERED.
__s/Richard J. Arcara________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: December 28, 2023
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Buffalo, New York

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